Pirie v State of New South Wales (NSW Police Force) - [2022] NSWPICPD 4

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Pirie v State of New South Wales (NSW Police Force) [2022] NSWPICPD 4
APPELLANT:	John Pirie
RESPONDENT:	State of New South Wales (NSW Police Force)
INSURER:	Employers Mutual Limited – TMF
FILE NUMBER:	A1-W282/21
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
DATE OF APPEAL DECISION:	31 January 2022
ORDERS MADE ON APPEAL:	1. Leave to appeal the Member’s Certificate of Determination dated 8 April 2021 is refused.
CATCHWORDS:	WORKERS COMPENSATION – leave to appeal an interlocutory decision – regulation 44 of the Workers Compensation Regulation 2016 – reliance by the employer on two medical experts from the same specialty – worker refused to submit to a further examination by the first expert and the employer requested the worker submit to an examination by a second medical expert – the employer sought to rely on the reports of both experts – reference to repealed Workers Compensation Commission Rules 2011 in reasons – procedural fairness
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr L Morgan, counsel
Toby Tancred Solicitor
Respondent:
Ms A Psirakis, solicitor
Turks Legal
DECISION UNDER APPEAL
MEMBER:	Mr P Young
DATE OF MEMBER’S DECISION:	8 April 2021

INTRODUCTION

The appellant, Mr Pirie, was formerly employed by the NSW Police Service as a Manager of the Canobolas Local Area Command based at Orange Police Station. He commenced his employment with the NSW Police Force in 1973. Mr Pirie was employed pursuant to the Crown Employees NSW Police Force Administrative Officers Award 2000. I infer that he was not a “police officer” under the Police Act 1990.
Mr Pirie sustained a number of injuries to the right and left knees. The dispute between the parties concerns the assessment of Mr Pirie’s whole person impairment for the purpose of lump sum compensation.
An Application to Resolve a Dispute (ARD) dated 11 March 2021 claimed “lump sum compensation where liability in dispute”. The claim was for a 20% whole person impairment (WPI) of the right lower extremity and nominated the date of injury as 17 July 2015.
The Reply to Application to Resolve a Dispute (Reply) dated 1 April 2021 provided that the respondent relied on its notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), dated 15 February 2021, together with a letter of offer.
The effect of the Reply was that Mr Pirie was offered lump sum compensation based on a 14% WPI.
The dispute between the parties came on for preliminary telephone conference before Member Young in the Personal Injury Commission on 8 April 2021.
The Member defined the issue to be determined by him in the following terms:
“the parties agreed that the matter should be referred to a Medical Assessor to determine the extent of the applicant’s whole person impairment, if any, which results from injury to his right lower extremity, which occurred with a deemed date [of] 17 July 2015. An issue has arisen concerning the material which should be submitted to the Medical Assessor.”[1]
[1] Transcript of telephone conference of 8 April 2021 (T), T 1.34–41.
Further refined, the precise issue was whether the Medical Assessor should be provided with reports commissioned by the employer from twoda orthopaedic surgeons, namely, Dr Panjratan (dated 28 July 2020, with supplementary reports dated 21 September 2020 and 14 December 2020), and a report of Dr Doig, dated 29 December 2020, or whether because of the constraints imposed by clause 44 of the Workers Compensation Regulation 2016 (the 2016 Regulation) the employer was required to elect between the reports of Dr Panjratan or the report of Dr Doig.
It will be necessary to advert in more detail to the history of the matter to explain how it was that the employer came to obtain reports from two orthopaedic specialists. At present it is sufficient to note that the Member directed that the two reports be placed before the Medical Assessor.
The appeal is against that order and seeks a substituted order, namely:
“Direct the respondent employer within seven days to elect which of the reports of Dr Panjratan or Dr Doig it seeks to place before the Medical Assessor.”

BACKGROUND FACTS

The Member resolved the parties’ dispute with brief ex tempore reasons without a detailed exposition of the relevant facts. This is not intended to be a criticism of the Member, given the nature of the dispute; the method in which the Member dealt with the parties’ dispute was appropriate.
It is necessary for the purpose of disposition of the appeal to set out the factual context in which the dispute arose.
On 4 June 2020, the appellant’s solicitor served a Workers Compensation Permanent Impairment Claim Form in which Mr Pirie claimed 20% whole person impairment to the right lower extremity alleging the date of injury to be 6 March 2007, supported by a report from Dr Tim Anderson, occupational physician, dated 19 May 2020.
On 21July 2020, Dr Panjratan examined Mr Pirie in his Dubbo rooms, at the request of the respondent. A report dated 28July 2020 was issued. That assessed the WPI at 14%.
On 17September 2020, the respondent’s solicitors made a “without prejudice” offer.
On 21September 2020, Dr Panjratan, without having further examined Mr Pirie, provided a supplementary report to the respondent’s solicitors.
On 5 November 2020, the appellant’s solicitor sent an email to the respondent’s solicitors as follows:
“I am instructed to provide notice of a claim for Whole Person Impairment compensation and refer you to the Permanent Impairment Claim Form served on 4 June 2020. The claim is brought on the basis that the Applicant sustained injury to his right knee as a result of several incidents that occurred in the course of his employment with the New South Wales Police Force in 2007 through to July 2015. The Applicant relies on a deemed date of injury of July 2015.”[2]
[2] ARD, p 243.
The email of 5 November 2020 changed the date of injury and was interpreted by the respondent’s solicitor as asserting a claim based on the “nature and conditions” of employment.
On 11 November 2020, the respondent’s solicitors sent a letter to the appellant’s solicitor requesting further and better particulars and concluding:
“A re-examination appointment with Dr Panjratan will be arranged shortly and details provided to you in due course. At the time of his previous examination of the worker, the injury was not pleaded as a nature and conditions injury and therefore a further assessment from Dr Panjratan is now required.”[3]
[3] ARD, p 245.
On 12 November 2020, the appellant’s solicitor responded to the request for particulars and added the following:
“The Applicant does not recognise any asserted right for a medical re-examination by Dr Panjratan and will object to Dr Panjratan conducting a further examination.”[4]
[4] ARD, p 246.
On 18November 2020, the respondent’s solicitors sent an email to the appellant’s solicitor:
“Could you please also clarify the following:
1. Do you (or your client) object to a re-examination with Dr Panjratan alone, or to any IME examination? If it is an objection to Dr Panjratan, the insurer is happy to arrange an IME with another specialist (or provide three options).
…
4. I confirm that at the time of his previous examination of your client, Dr Panjratan was not requested to assess your client on the basis of a nature and conditions injury and was not asked to comment on such an injury as it had not been claimed.”[5]
[5] ARD, p 248.
On 30 November 2020, the solicitor for the appellant responded as follows:
“I refer to your email dated 18 November 2020. I apologise for the delay in responding. I now have instructions. The objection is to Dr Panjratan. My client is content to attend an IME examination with a different doctor. It would be his preference if this could occur in Dubbo or Orange so that he does not have to travel to Sydney. Being an older person he is a little concerned about COVID-19 infection.”[6]
[6] ARD, p 251.
On 2 December 2020, the respondent’s solicitors provided the appellant’s solicitor with the names of three doctors, one of which was to be chosen by the appellant for the examination.
The appellant chose to be examined by Dr Doig and the examination occurred on 19 December 2020. Dr Doig’s report issued on 29 December 2020.
Dr Doig assessed the appellant’s whole person impairment to be 14%. Dr Doig’s history is more abbreviated than that of Dr Panjratan. However, Dr Doig was provided with copies of Dr Panjratan’s reports dated 28 July 2020 and 21 September 2020. Dr Doig’s report does not provide any additional history or mechanism of injury when compared to the reports of Dr Panjratan.
On 16 February 2021, the respondent’s solicitors made a without prejudice offer of settlement to the appellant. In that letter was enclosed the s 78 Notice.
On 18 February 2021, the appellant’s solicitor made a counteroffer by email. The email is not expressed to be without prejudice, but in my view, is plainly intended to be a without prejudice communication.
On 4 March 2021, the respondent’s solicitors responded to that offer. The parties remained in dispute.
On 11 March 2021 the appellant filed the Application to Resolve a Dispute.
The telephone conference and the delivery of the ex tempore reasons occurred on 8April 2021.

CERTIFICATE OF DETERMINATION – ORAL DECISION

The determination of the Commission was as follows:
“1.     The matter is remitted to the President for referral to a Medical Assessor (Orthopaedic Surgeon) to determine the extent of the applicant’s whole person impairment, if any, which results from injury to his right lower extremity with deemed date of injury 17 July 2015.
2.      I request the President’s delegate place before the Medical Assessor a copy of the Application to Resolve a Dispute dated 11 March 2021 and a copy of the Reply lodged 1 April 2021 and attachments.
3.      I request the President’s delegate arrange for the medical assessment to occur not before 7 May 2021.”
The appeal challenges order 2 because attached to the ARD were the reports of both Drs Panjratan and Doig.

THE MEMBER’S STATEMENT OF REASONS

The Member heard submissions from the solicitors for the appellant and the respondent. At the conclusion of the submissions, the Member made the orders in the Certificate of Determination and gave brief oral reasons:
“In this matter the parties are in agreement that the determination of whole person impairment should be referred to a Medical Assessor. The issue in question concerns the application of clause 44 of the Workers Compensation Regulations 2016. The applicant submits that the respondent should not be allowed to place before the assessor a report of Dr G Doig from the 29th of December 2020, in addition to reports from Dr Panjratan. The respondent makes the point that the reason the examination with Dr Doig occurred is because the applicant objected to a further re-examination by Dr Panjratan.
In the circumstances, given that the reports are, and the examinations, I should say, are six months apart I believe that it would be a denial of natural justice to the respondent to strictly apply clause 44 in these circumstances and to the extent that it’s necessary I rely upon Part 15, Rule 15 of the Workers Compensation Commission Rule and Procedural Tables and I’m inclined to allow the Medical Assessor to receive the report of Dr Doig as well as the reports of Dr Panjratan. I’ll make an additional request that the medical assessment not occur, not be arranged to occur until the expiration of 28 days from today so that Mr Tancred has an opportunity to obtain instructions as to whether my direction should be challenged.
The second order that I was starting to make was requesting the President’s delegate to place before the Medical Assessor a copy of the Application dated 11th of March 2021 and attachments and a copy of the Reply lodged 1 April 2021 and attachments.”[7]
[7] T 4.32–5.30.
There was further discussion in which the solicitor for the appellant submitted that the Workers Compensation Commission Rules 2011 relied on by the Member had been repealed by the Personal Injury Commission Rules 2021.
The respondent’s solicitors submitted that the new Rules were essentially the same and the Member said “I understood that they were basically replicated”[8] and further the Member said:
“There was a decision of the Court of Appeal in Sydney Area Health Service v Edmonds back in 2007 that talked about admissibility and the appropriate evidence to be considered. Roche, Deputy President, in a matter of Paul Segaert Pty Limited v Narayan, which is a 2006 decision, made the point that [section] 354 doesn’t give an Arbitrator carte blanche to consider any material that should be referred or adopted in the matter but the general point is that they do have a duty to comply with the rules of natural justice and procedural fairness and to give each party a reasonable opportunity to consider material. And it was on that basis that I took the view that in circumstances where the applicant refused to or declined to attend a re-examination with a certain doctor it was fair for the respondent to arrange another doctor and would be, it follows it would, in my view, be unfair for the respondent then to be denied the opportunity of having that evidence before the Medical Assessor. Anyway, Mr Tancred, I think if you want to pursue that point then I’ve given you the twenty eight days to deal with it.”[9]
[8] T 6.22–23.
[9] T 7.26–8.12.
The appellant’s solicitor submitted that cl 44 did not provide for any discretion. Ultimately, the Member was not persuaded and the orders set forth in the Certificate of Determination were made.

ON THE PAPERS

The respondent submits that the appeal can be decided solely on the basis of the written application and any written notice of opposition.
The appellant submits that he may wish to supplement his written submissions by way of written reply on receipt of the respondent employer’s submissions, but that otherwise the appeal can be dealt with on the papers.
On 12 May 2021, the Commission issued a Direction having regard to the transcript of the proceedings before the Member. The directions were:
“The appellant is to file and serve any supplementary submissions it wishes to make in respect of the transcript by 26 May 2021.
Any submissions by the respondent in respect of the transcript must be lodged with the Commission and served on all other parties together with the Notice of Opposition, within the timeframes provided for by the Registrar’s Direction of 6 May 2021.”
The appellant did not put any further submissions with respect to the transcript and did not lodge any submissions in Reply.
Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
The Procedural Directions PIC2 and WC3 provide that I may be satisfied that the documents and submissions of the parties provide me with sufficient information so that the appeal can be determined on the papers without holding any formal hearing. I am satisfied this is an appropriate matter to proceed “on the papers” without holding any conference or formal hearing.

THE NATURE OF THE APPEAL PURSUANT TO SECTION 352 OF THE 1998 ACT

Section 352 of the 1998 Act relevantly provides:
“(3)    There is no appeal under this section unless the amount of compensation at issue on the appeal is both—
(a) at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.
(3A) There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.
(4)     The appeal must be made within—
(a)28 days after the decision appealed against is made, or
(b)a longer period determined or allowed, whether generally or for the kind of proceedings, in accordance with the Commission rules.
(5)     An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The parties are in agreement that the decision appealed from is an interlocutory decision such that leave is required under s 352(3A). There is disagreement as to whether s 352(3) is satisfied.

THRESHOLD MATTERS: SECTION 352(3) THRESHOLD

The parties agree that the appeal was lodged within time.
The appellant submits that s 352(3) of the 1998 Act is satisfied because the appellant worker seeks compensation for a 20% whole person impairment, being $30,250. The respondent employer made an offer to resolve the claim on the basis of 14% whole person impairment, being $20,350.
The appellant’s submission in this regard is supported by decisions such as Grimson v Integral Energy,[10] NSW Department of Education and Communities,[11] and others.
[10] [2003] NSWWCCPD 29, [30].
[11] [2012] NSWWCCPD 63, [23]–[24].
The respondent “does not concede that the relevant threshold issues are satisfied for the appeal to proceed. It is noted that the decision appealed against did not involve the award of any monetary sum.”
The respondent submits that “[i]n any event, leave must be granted by the Commission under s 352(3A) of the [1998 Act].”
In Fletchers International Exports Pty Limited v Regan[12] Fleming DP held at [27]:
“While the decision of an Arbitrator may not concern an ‘award’ of compensation (as in Mawson), the appeal must nonetheless affect an ‘amount of compensation at issue on appeal’ to pass the threshold test in s 352(2)(b). Purely procedural decisions, such as a decision to adjourn a telephone conference … a decision in relation to costs only … and a decision to schedule a further telephone conference … do not meet this threshold criterion. The decision must have a real capacity to put the amount of compensation, determined by reference to the decision or the claim (Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSWWCCPD 3), in issue in the appeal (as in the case of filing a ‘Reply’) (ADCO Constructions Pty Limited v Ferguson [2003] NSWWCCPD 21).” (Emphasis in original, unnecessary citations omitted.)
[12] [2004] NSWWCCPD 7 (Regan), [27].
In O’Callaghan v Energy World Corporation Limited,[13] Roche AP at [47] quoted that passage from Regan and said at [48]:
“It follows that where, as in the present matter, the Commission has made no order for the payment of compensation, the amount of ‘compensation at issue on appeal’ must be determined by reference to the amount of compensation at issue in the proceedings before the Arbitrator.”
[13] [2016] NSWWCCPD 1 (O’Callaghan).
The issue in O’Callaghan was whether the appellant was entitled to a whole person impairment assessment sufficient to bring a work injury damages claim against the employer. Roche AP found that s 352(3)(a) was not met and that there was no right of appeal.
The issue in the present matter before the Member was what material should be placed before the Medical Assessor. The claim in the ARD is for an amount of $30, 250 an amount greatly in excess of the amount necessary to satisfy s 352(3)(a) if that is the amount “at issue on the appeal”.
The submission by the appellant, that because the amount claimed is greater than the amount offered by the respondent and therefore the amount of compensation in issue exceeds the sum of $5,000 and is at least 20% of the amount awarded by the Member, is unconvincing because:
(a) the function of the Medical Assessor is to form his or her own independent view of the whole person impairment whatever may have been the position of the appellant and the respondent.[14] The Medical Assessor’s function is not arbitral nor is the Medical Assessor required to choose between competing assessments, and
(b) the submission assumes the result of the assessment will be between the assessments provided by the parties’ medical referees.
[14] Wingfoot Australia Partners Pty Limited v Kocak [2013] HCA 43; 252 CLR 480, [47].

The matter at issue on the appeal in this matter is what medical reports are to go before the medical assessor. Where issue on the appeal is the nature of the documentation to be placed before the Medical Assessor satisfying the financial burden imposed by s 352(3) is in my view problematic.
However, as I have come to the conclusion that leave should not be granted the problem presented by s 352(3)(a) need not be finally resolved.

LEAVE TO APPEAL AN INTERLOCUTORY DECISION: SECTION 352(3A) OF THE 1998 ACT

The parties do not dispute the decision of the Member is interlocutory and leave is required.

Appellant’s submissions

The appellant submits that leave should be granted under s 352(3A) for the following reasons:
(a)    the appeal will not cause undue delay, the appellant worker already having been referred to a Medical Assessor and the subject of the appeal being a point confined to the construction of cl 44 of the 2016 Regulation;
(b)    if leave to appeal is not granted, the appellant worker will be prejudiced as the respondent employer will be permitted to rely on two forensic medical reports from practitioners of the same speciality, and
(c)    the Medical Assessor will be provided with reports which may lead the Medical Assessor to err in his or her assessment of the appellant worker’s whole person impairment. This may result in an improper or ineffective determination of the appellant worker’s lump sum compensation dispute.
The appellant worker submits that on balance and with reference to the Commission’s obligations relative to fairness between the parties and the efficient disposition of matters before the Commission, leave to appeal ought be granted.

Respondent’s submissions

The respondent submits it is neither necessary nor desirable for the proper and effective determination of this dispute to allow for an appeal against the interlocutory decision of the Member to proceed.
The respondent submits:
(a)    that there will be additional delay in the Medical Assessor referral and appointment;
(b)    the worker is not prejudiced because both IMEs provide an assessment of 14%;
(c)    the necessity to obtain a report from Dr Doig derived from the appellant worker’s request for an alternative IME appointment and the respondent insurer’s agreement;
(d)    the respondent would have preferred Dr Panjratan to re-examine the appellant but acceded to the appellant’s request and ought not be prejudiced thereby, and
(e)    neither in the interests of fairness nor timeliness would leave to allow the appeal be justified.

Consideration

In my view, leave to appeal should not be granted for the following reasons:
(a)    Leave is not to be granted unless it is “necessary or desirable” for the proper determination of the parties’ dispute. The “dispute” relevant to the Member’s determination and to the appeal is as to what documents should go before the Medical Assessor. But it is plain that the present “dispute” is peripheral to the real issue in the proceedings, namely what is the appropriate assessment as determined by the Medical Assessor. An objective of the scheme is the timely disposition of disputes. In my view further agitation of the present peripheral dispute is neither necessary nor desirable from the point of view of the true issues between the parties.
(b)    The necessity for the further report from Dr Doig arose from the request by the appellant that he not be re-examined by Dr Panjratan. In my view it would be unfair (“not desirable”) for the respondent to be deprived of an up to date medical review of the appellant for reasons generated by the appellant.
(c)    The appeal was inherently likely to and inevitably has delayed the assessment by the Medical Assessor.
(d)    Dr Doig’s report is by way of an “update” and expresses the same conclusion as to the WPI as Dr Panjratan.
(e)    It is doubtless of assistance to the Medical Assessor to have available material which suggests that the appellant’s impairment has remained constant from the examination in July of 2020 to the examination in December of 2020. It enhances the conclusion that the appellant’s condition is stable and that the assessment should proceed.
(f)    The proper and effective determination of the real dispute between the parties will depend upon the Medical Assessor’s independent conclusion as to the WPI. A properly instructed Medical Assessor is unlikely to be overly or improperly influenced by the fact that the employer has had the appellant examined by two orthopaedic specialists.
(g)    The purpose of cl 44 is to prevent the Commission from being overwhelmed by large numbers of medical reports from different referees of the same speciality and to discourage “doctor shopping” whereby a party seeks to obtain a favourable opinion from a doctor when confronted with less favourable opinions from other referees. In my view, that is not the situation prevailing in the present matter.
(h)    Finally and perhaps most importantly it is a matter of procedure. It is undesirable because of the inevitable delay and the fact that reasonable minds can differ for such matters of procedure to be agitated on several occasions.
In my view the matter is one in which leave to appeal should not be granted, and I decline to grant leave.
In any event for the reasons provided below the substantive grounds of appeal are not established.

GROUNDS OF APPEAL

The appellant relies on three grounds of appeal, namely:
(a)    the Member erred in law by incorrect construction of cl 44 of the 2016 Regulation;
(b)    the Member erred in law by referring to repealed Rules, and
(c)    the Member erred in law by his denial of procedural fairness ruling.

Ground 1 – the Member erred in law by incorrect construction of cl 44 of the 2016 Regulation

Appellant’s submissions

The appellant sets out cl 44 of the 2016 Regulation and cites Waldron v Agrimac International Pty Limited[15] and Atkins v City of Canada Bay Council.[16] He then submits:
“The terms of Regulation 44 are mandatory. Member Young was not vested with any discretion as to whether the reports of both Dr Panjratan and Dr Doig could be provided to [a Medical Assessor]. The terms of Regulation 44 WC Regulation clearly state ‘only one forensic medical report may be admitted on behalf of a party to proceedings.’”[17]
[15] [2016] NSWWCCPD 35.
[16] [2015] NSWWCCPD 33.
[17] Appellant’s submissions, [23].
The appellant’s submission is that the respondent should have been required to make an election as to which specialist it wished to rely upon in accordance with cl 44.

Respondent’s submissions

The respondent refers to and relies upon the case of McCarthy v Patrick Stevedores No 1 Pty Limited.[18] It relies on that case as authority for the proposition that additional medical reports could be admitted into evidence as witness statements for the purpose of the history recorded. It says in the present situation the examinations conducted by Dr Panjratan and Dr Doig were some 6 months apart. Therefore for the provision of an appropriate history and examination findings it is necessary for both reports to be provided to the Medical Assessor.
[18] [2010] NSWWCCPD 96 (McCarthy).

Consideration

Clause 44 of the 2016 Regulation provides relevantly:
“(1)    In any proceeding on a claim or a work injury damages threshold dispute in relation to an injured worker, only one forensic medical report may be admitted on behalf of a party to proceedings.
(2)     A report referred to in subclause (1) must be from a specialist medical practitioner with qualifications relevant to the treatment of the injured worker’s injury.
…
(4)     In this clause—
forensic medical report, in relation a claim or dispute—
(a)means a report from a specialist medical practitioner who has not treated the worker and that has been obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of the claim or dispute, and
(b)includes a medical report provided by a specialist medical practitioner in respect of an examination of the injured worker pursuant to section 119 of the 1998 Act, and
(c)does not include a report from a specialist medical practitioner who has not treated the worker and that has been obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of another claim or dispute.”
Clause 43 of the 2016 Regulation provides that “proceedings means proceedings before the Commission or the District Court.”
Section 119 of the 1998 Act authorises medical examinations of workers at the direction of an employer. That is in effect the medical assessment that is to be undertaken of Mr Pirie in the present matter.
Clause 44 or its predecessors has been applied in accordance with the grammatical construction of the text to limit the number of reports from an individual speciality tendered in evidence in Atkins v City of Canada Bay Council[19] and Waldron v Agrimac International Pty Limited.[20]
[19] [2015] NSWWCCPD 33.
[20] [2016] NSWWCCPD 35, [63].
Clause 44 applies where there is a proceeding as that term is defined. Clause 44 as a matter of construction only applies to reports to be admitted on behalf of a party before the Commission or the District Court.
A medical assessment by a Medical Assessor is not a proceeding before the Commission or the District Court.
In my view, cl 44 does not apply to the medical reports to be submitted to the Medical Assessor. This is because there is a difference between a “proceeding on a claim” before a Member and the medical assessment by a Medical Assessor. The present matter does not involve a “medical report [being] admitted on behalf of a party to proceedings”.
I find support for my conclusion in Regan. There the Arbitrator was held to have been in error in restricting the reports placed before the Approved Medical Specialist.[21]
[21] Regan, [55].
The Deputy President in Regan was concerned with cl 51F and G of the Workers Compensation (General) Regulations 1995. She set out cl 43 and 44 of the Workers Compensation Regulation 2003 which she said were in the same terms as cll 51F and 51G. Clause 43 was similar to the present cl 44. The definition of “Lump sum compensation” was not materially different from the definition in the present cl 43.
The Deputy President said at [47] that the Approved Medical Specialists are not members of the Workers Compensation Commission and “the making of a medical assessment by an [Approved Medical Specialist] is not a ‘proceeding’ before the Commission.” The Medical Assessors are not members of the Personal Injury Commission[22] and the making of a medical assessment is not a proceeding before the Commission or the District Court.
[22] Section 8 of the 2020 Act.
In Regan the Deputy President concluded:
“The result is that while a party is not permitted to file more than one medical report in any one specialty in proceedings before the Commission (constituted by an Arbitrator or Presidential Member), the Commission has no power to restrict the disclosure of information, including medical reports, to an Approved Medical Specialist.”[23]
[23] Regan, [51].
In my view in the present matter cl 44 of the 2016 Regulation likewise does not preclude the placing of the reports of Drs Panjratan and Doig before the Medical Assessor.
In McCarthy, Deputy President Roche said:
“Though Dr Chapman’s reports are not admissible as forensic medical reports, the question of whether I should admit them as witness statements raises different questions, namely whether the reports may be admitted for the limited purpose of relying on the histories recorded in them. Two questions arise in determining this issue: is the material relevant to an issue in dispute and will the admission of the reports as witness statements involve an unfairness to Patrick Stevedores.”[24]
[24] McCarthy, [33].
The Deputy President concluded:
“On condition that Mr Whiffin relies only on Dr Chapman’s histories, but not on his opinions and conclusions, it is appropriate, in the circumstances of this case, to admit Dr Chapman’s reports as witness statements, but not as forensic medical reports. It follows that, as I have admitted the reports for the limited purpose of relying on the histories recorded in them, they cannot be used for another purpose. This approach is both fair and logical. It admits evidence relevant to an issue in dispute, but excludes evidence that would breach cl 43 of the Regulation. It is also consistent with common law authority.”[25]
[25] McCarthy, [37].
In McCarthy:
(a) the issue was the admission of the reports in the proceedings before the Arbitrator. The issue was not reports going before the Medical Assessor, and
(b) the histories contained in the medical reports were relevant as histories and those reports were relied upon for that purpose.
In the present matter the reports are to be placed before the Medical Assessor who may not as readily be able to determine the use that is permitted to be made of the reports. I would not uphold the Member’s finding on the basis of the decision in McCarthy.
However for the reasons provided above, the Member was correct to permit the reports of Drs Panjratan and Doig to be placed before the Medical Assessor. Ground 1 of the appeal is rejected.

Ground 2 – The Member erred in law by referring to repealed rules

Appellant’s submissions

The appellant submits that the reliance by the Member on r 15.1 of the Workers Compensation Commission Rules 2011 was impermissible because from 1 March 2021 by s 67 of the 2020 Act those rules were not in force and could not be relied upon.

Respondent’s submissions

The respondent submits that at the time of the telephone conference of 8 April 2021 the new Personal Injury Commission Rules 2021 were not available to the Member, which he acknowledged having expressed the understanding that r 15.1 would be included in the Personal Injury Commission Rules. The respondent relies upon One Steel Reinforcing Pty Limited v Sutton.[26] The respondent further submits that the decision of Member Young was correct and that his reference to r 15.1 of the Workers Compensation Commission Rules should be taken as a reference to r 9 of the new Personal Injury Commission Rules.
[26] [2011] NSWWCCPD 34.

Consideration

Rule 15.1(1) of the Workers Compensation Commission Rules 2011 provided: “Where proceedings are referred to an Arbitrator, the Arbitrator may, while the referral continues, make any order relating to the procedure to be followed in the proceedings (including an order striking out the proceedings or any step in the proceedings) that could be made by the Registrar”.
Rule 9 of the Personal Injury Commission Rules 2021 provides: “A non-presidential member or merit reviewer to whom applicable proceedings are referred may make any order relating to the procedure to be followed in the proceedings including an order striking out the proceedings of any step in the proceedings, that could be made by the President”.
The Member was aware because the solicitor for the appellant informed him that the Workers Compensation Commission Rules 2011 had been repealed by the Personal Injury Commission Rules 2021. What the solicitor did not do was to assist the Member by directing his attention to the relevant Personal Injury Commission Rule.
The 2020 Act provides in s 42 as follows:
“(1)    The guiding principle for this Act and the Commission rules, in their application to proceedings in the Commission, is to facilitate the just, quick and cost effective resolution of the real issues in the proceedings.
(2)     The Commission must seek to give effect to the guiding principle when it—
(a) exercises any power given to it by this Act or the Commission rules, or
(b) interprets any provision of this Act or the Commission rules.
(3)     Each of the following persons is under a duty to co-operate with the Commission to give effect to the guiding principle and, for that purpose, to participate in the processes of the Commission and to comply with directions and orders of the Commission—
(a) a party to proceedings in the Commission,
(b) an Australian legal practitioner or other person who is representing a party in proceedings in the Commission.
…”
The Personal Injury Commission Rules commenced to operate on the establishment date.[27] The establishment date is 1 March 2021.[28]
[27] Rule 2 of the Personal Injury Commission Rules 2021.
[28] Section 6 of the 2020 Act.
Accordingly, the appellant is correct that the Workers Compensation Commission Rules were repealed and non-operative as at 8 April 2021. However, r 9 of the Personal Injury Commission Rules 2021 was operative and could be relied upon by the Member to make appropriate procedural directions.
The Member addressed the solicitor for the appellant in the following terms:
“MR TANCRED: Yes, Member, could you tell me what Part 15, Rule 15 of what, what the legislation - - -
MEMBER: Oh, sorry, yes, it’s Workers Compensation Rules. It provides for procedural orders by Arbitrators.
MR TANCRED: No. Well they’ve been repealed by the Personal Injury Commission Rules.
MEMBER: You might be right, Mr Tancred.
MR TANCRED: Well I’m certain I’m right.
MEMBER: Yes. Do the new Personal Injury Commission Rules restate Part 15?
MS PSIRAKIS: I thought the new Rules were essentially very similar, if not the same, but I’m trying to see if I can pull them up.
MEMBER: I understood that they were basically replicated.”
It is plain that the Member was seeking assistance as to the rule then in position equivalent to r 15.1 of the Workers Compensation Commission Rules 2011. Neither representative was able to direct his attention to the precise rule. Nevertheless, there was a rule and it is patent from the transcript that the Member was conscious that his authority to make a procedural direction depended on the then current Personal Injury Commission Rules 2021.
With respect to the appellant and the respondent, where the precise rule could not be identified immediately, they ought to have provided a reference to the correct rule after the proceedings had concluded and when a published version of the relevant rule was available.
Neither the appellant nor the respondent directed any submission to the applicability of r 9 of the Personal Injury Commission Rules 2021. I therefore accept that the only issue concerned the Member’s reference to the previous rules. As is clear from the transcript, the Member sought to and did apply the operative Personal Injury Commission Rules 2021. No error is established.
Ground 2 of the appeal is rejected.

Ground 3 – The Member erred in law by his denial of procedural fairness ruling

Appellant’s submissions

The appellant submits that the Member erred by ruling that it would be a denial of procedural fairness to the respondent employer if it was not entitled to rely on the reports of both Dr Panjratan and Dr Doig. The appellant refers to Kioa v West.[29]
[29] [1985] HCA 81; 159 CLR 550 (Kioa), [6].
The appellant further submits that there can be no denial of procedural fairness in circumstances where the respondent employer was provided an opportunity to obtain medical evidence from an orthopaedic surgeon in relation to the appellant worker’s whole person impairment but is entitled to rely on the opinion of only one specialist as required by cl 44 of the 2016 Regulation.

Respondent’s submissions

The respondent submits that the Member was correct because the issue arose because the respondent acted in accordance with the wishes of the appellant worker in providing fresh IME options following his refusal to attend re-examination by Dr Panjratan.
The actions of the appellant worker could be seen as an attempt to have the report of Dr Panjratan excluded from future proceedings on the basis of his apparent dislike of the doctor. It submits:
“It is clearly in the interests of procedural fairness that workers should not be permitted to fish for a suitable IME from a respondent if for some reason the examination and report from the original IME does not suit the worker’s purpose.”[30] (emphasis in original)
[30] Respondent’s submissions, [5].

The respondent furthermore points out that both the reports of Dr Panjratan and Dr Doig were included by the appellant worker in his ARD.
The respondent’s final submission was that the Medical Assessor should be in possession of the reports of Dr Panjratan and Dr Doig as this would allow for a clear history to be provided and a fair assessment conducted. As noted above, the examinations of the doctors occurred some six months apart and reflect any change in the appellant worker’s presentation at the time.

Consideration

The Member said:
“the general point is that they do have a duty to comply with the rules of natural justice and procedural fairness and to give each party a reasonable opportunity to consider material. And it was on that basis that I took the view that in circumstances where the applicant refused to or declined to attend a re-examination with a certain doctor it was fair for the respondent to arrange another doctor and would be, it follows it would, in my view, be unfair for the respondent then to be denied the opportunity of having that evidence before the Medical Assessor.”[31]
[31] T 7.34–8.10.
The appellant submits that cl 44 is a statutory prohibition on the Member preventing him from directing that the Medical Assessor being provided with the reports of Dr Panjratan and Dr Doig and that in this circumstance there could be no denial of procedural fairness to the respondent. A passage from the judgment of Deane J in Kioa is relied upon.
There are several reasons for rejecting this submission:
(a)    In Kioa the High Court held that s 5(1) of the Administrative Decisions (Judicial Review) Act1977 (Cth) imposed no obligation that the rules of natural justice should be observed in relation to every decision to which the Act applied.[32] The lengthy discussion undertaken in the High Court concerned the circumstance in which administrative decision makers had a duty to act fairly and to accord procedural fairness.
[32] [1985] HCA 81; 159 CLR 550, 630.
(b)    The Personal Injury Commission is subject to s 43 of the 2020 Act. In particular, the Member was obliged to comply with the following:
“43    Procedure before Commission generally
…
(3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”
(c)    In his reasons, Mason J expressed the principle of “procedural fairness” in this context as conveying the notion of a flexible option to adopt fair procedures appropriate and adapted to the circumstances of the particular case. “The statutory power must be exercised fairly in accordance with the procedures that are fair to the individual considered in light of the statutory requirements the interests of the individual and purposes whether public or private which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations” (citations omitted).[33] The passage quoted from Member’s reasons accords with the principle of procedural fairness identified by Mason J.
(d)    Furthermore as explained above, cll 43 and 44 do not apply to a referral to a Medical Assessor.
(e)    In the circumstances which occurred in the present matter, whereby the respondent indulged the appellant’s request to be examined by an alternative IME, “good conscience” required that the respondent be permitted to rely upon the report generated as a consequence of that indulgence.
[33] (1985) 159 CLR 550, 585.
Section 43 provides clear legislative intent, and, in my view, the Member was entitled in good conscience to allow the reports from the two orthopaedic surgeons to go forward to the Medical Assessor.
Ground 3 of the appeal is not made out.

CONCLUSION

Leave to appeal the Member’s Certificate of Determination dated 8 April 2021 is refused.

Geoffrey Parker SC
ACTING DEPUTY PRESIDENT

31 January 2022